Re: Principles Suck

1

Without knowing anything about the lawsuit, it being two private parties 1st Ammendment would not apply, right?


Posted by: Tassled Loafered Leech | Link to this comment | 10-31-07 2:33 PM
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Cough the state enforces private civil judgments cough.


Posted by: Flippanter | Link to this comment | 10-31-07 2:35 PM
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I'm pretty sure that just enforcing the judgment doesn't make it "state action."


Posted by: m. leblanc | Link to this comment | 10-31-07 2:37 PM
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From MatthewSnyder.org,

This is a private civil lawsuit that is separate from any actions being pursued by states or the federal government against Mr. Phelps. While those cases involve Government action and potential 1st Amendment issues, this case is distinct. This case simply alleges that one does not have the right to conspire to use lies in order to inflict intentional harm upon persons who are grieving the death of their children.

He sued for defamation, invasion of privacy and intentional infliction of emotional distress. The First Amendment doesn't protect against defamation, does it? Or is it likely that the jury was emotionall influenced and they'll rule it wasn't defamation on appeal? Phelps is pretty careful, after all.


Posted by: neil | Link to this comment | 10-31-07 2:38 PM
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IANAL, but that makes no sense to me. The Bill of Rights is all about what the government can't do, not individuals. But if you say so.


Posted by: Tassled Loafered Leech | Link to this comment | 10-31-07 2:39 PM
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Anyway it seems like the cause of action you would want to bring would be "intentional infliction of emotional distress." If it's "extreme and outrageous" (true story: the standard for what makes something "outrageous" is, on the books, whether it would cause an ordinary person to exclaim "that's outrageous!"), and some other stuff, you can recover.

You can't cause people demonstrable injury with your words/conduct and then say "free speech!" Sorry.


Posted by: m. leblanc | Link to this comment | 10-31-07 2:40 PM
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You can't cause people demonstrable injury with your words/conduct and then say "free speech!" Sorry.

I hope the standard for "demonstrable" is very high, otherwise, in theory, any soldier's parent could sue an opinion columnist for saying that war has been in vain.


Posted by: ogged | Link to this comment | 10-31-07 2:42 PM
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I was right! Anyway, my bet'd be that they'll fail on the defamation count and succeed on the invasion of privacy/intentionaly infliction of emotional distress count.

For it to be defamation, you have to say things that are provably false. We don't know whether "god hates fags" is true or not.


Posted by: m. leblanc | Link to this comment | 10-31-07 2:42 PM
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I look forward to the first lawsuit against commenters on this blog for defaming our brave troops in Iraq.

I'm sure someone is already preparing a lawsuit against Pete Stark because his House floor comments hurt somebody's feelings when they heard it.


Posted by: marcus | Link to this comment | 10-31-07 2:43 PM
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Intentional infliction of emotional distress is a crime? I am in serious trouble.


Posted by: Sifu Tweety | Link to this comment | 10-31-07 2:43 PM
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pwned, naturally.


Posted by: marcus | Link to this comment | 10-31-07 2:43 PM
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Didn't NYT v Sullivan hold that there are 1st amendment limits on libel?

Isn't "state action" a requirement of 42 USC 1983, not the 1st Am?


Posted by: Michael H Schneider | Link to this comment | 10-31-07 2:44 PM
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any soldier's parent could sue an opinion columnist for saying that war has been in vain

Nope, because the distress has to be intentional. Hence, intentional infliction etc. It would be mighty difficult to show intent to injure that particular person, in the example you cite.

Also, yes, demonstrable is a rather high bar. I'm pretty sure (but not entirely) that your emotional distress has to have documented physical symptoms (like insomnia, persistent anxiety, shit like that).


Posted by: m. leblanc | Link to this comment | 10-31-07 2:45 PM
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any soldier's parent could sue an opinion columnist for saying that war has been in vain.

Maybe if the columnist nailed a copy of the op-ed page to the parent's front door, but otherwise the situations aren't at all analogous.


Posted by: Matt F | Link to this comment | 10-31-07 2:45 PM
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Is it Lawrence of Arabia the movie in which a British guy yells "Outrageous!" repeatedly (I think while looking at conditions in Damascus)?


Posted by: eb | Link to this comment | 10-31-07 2:45 PM
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No, it's not a crime, it's a tort. And the level of outrage required seems to be pretty astronomical. I can't find an example of a case which has won on appeal (though I'm not even remotely a lawyer). Then again, it's hard to think of many things more outrageous than the Phelps' antics.


Posted by: neil | Link to this comment | 10-31-07 2:45 PM
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Intentional infliction of emotional distress is a crime?

No, a tort (i.e. an infraction of civil, not criminal law). There is a very high bar for winning a claim of IIED, but most jurisdictions recognize it in some form (N.B. IANAL, so you pros correct me if I'm wrong on the particulars).


Posted by: Knecht Ruprecht | Link to this comment | 10-31-07 2:47 PM
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leblanc has stated the law of defamation exactly as I remember it.


Posted by: I don't pay | Link to this comment | 10-31-07 2:47 PM
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Pwned by Neil. Also, I suppose it is a common law tort rather than a civil law, but whatevs.


Posted by: Knecht Ruprecht | Link to this comment | 10-31-07 2:48 PM
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Ok, I get it. But I still don't like it. Free Fred Phelps!


Posted by: ogged | Link to this comment | 10-31-07 2:48 PM
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(true story: the standard for what makes something "outrageous" is, on the books, whether it would cause an ordinary person to exclaim "that's outrageous!"),

Does it have to be an overt utterance, or do inward exclamations count?


Posted by: ben w-lfs-n | Link to this comment | 10-31-07 2:49 PM
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Frankly, I think that Phelps' conduct is exactly the sort of thing that the existence of an IIED claim is designed to address.


Posted by: m. leblanc | Link to this comment | 10-31-07 2:49 PM
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From Wikipedia:

Courts in most jurisdictions take a decidedly unfavorable stance towards IIED claims. It is felt that they are generally frivolous claims for non-quantifiable harm, and often are appended to other more substantive claims merely as an afterthought. Meeting the element of conduct that is so outrageous as to be beyond the bounds of civilized society is extremely difficult, and consequently most claims fail. The New York Court of Appeals, for example, has stated that "Indeed, of the intentional infliction of emotional distress claims considered by this Court, every one has failed because the alleged conduct was not sufficiently outrageous."

Posted by: Knecht Ruprecht | Link to this comment | 10-31-07 2:51 PM
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21: Neither, actually. It just has to be the sort of thing a reasonable person would say in response to the conduct. Which, I think is clearly met here. If you told most normal people, who didn't know about Westboro BC, about what Phelps does, I think they'd express a mixture of incredulity and outrage.


Posted by: m. leblanc | Link to this comment | 10-31-07 2:51 PM
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IIED claims have to meet a very, very high standard, but picketing a funeral claiming that God hated the deceased is awfully strong.


Posted by: LizardBreath | Link to this comment | 10-31-07 2:52 PM
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"We don't know whether "god hates fags" is true or not."

yes we do.
and it's outrageous!

i think we could definitely get the old bastard on an iied claim.


Posted by: kid bitzer | Link to this comment | 10-31-07 2:56 PM
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Oh, if we're suing God for IIED, that's not even where we'd start. Pain, aging, sickness, and death? Childbirth?


Posted by: LizardBreath | Link to this comment | 10-31-07 2:58 PM
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Earlier, church members staged a demonstration outside the federal courthouse, which is located on a busy thoroughfare a few blocks west of Baltimore's Inner Harbor, while passing motorists honked and shouted insults.


Church founder Fred Phelps held a sign reading "God is your enemy," while his daughter Shirley Phelps-Roper stood on an American flag while carrying a sign that read "God hates fag enablers." Members of the group sang "God Hates America,"' to the tune of "God Bless America."

I'm sure that impressed everybody.


Posted by: neil | Link to this comment | 10-31-07 2:58 PM
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25: agreed. I seem to remember that most of the IIED cases from torts dealt with folks doing nasty things at either funerals or someone's death. This surely fits the bill; it's tough to imagine worse things (not that this crew couldn't do it).


Posted by: dan | Link to this comment | 10-31-07 2:59 PM
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I have a really hard time interpreting Fred Phelps as anything but tongue-in-cheek performance art. It just makes no sense.


Posted by: LizardBreath | Link to this comment | 10-31-07 3:00 PM
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Sounds like no one's going to be on board for a Fred Phelps Unfogged fundraiser.


Posted by: ogged | Link to this comment | 10-31-07 3:01 PM
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Shirley Phelps-Roper was also the defense attorney.


Posted by: neil | Link to this comment | 10-31-07 3:01 PM
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30: The liberal's difficulty is crediting his adversary's sincerity, the conservative's, assuming his adversary's humanity.


Posted by: Flippanter | Link to this comment | 10-31-07 3:02 PM
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Re: Dear People and IIED: Yeah, I mean imagine something like being forced to watch the mutilation of your dead [whatever]'s body.

Basically I think the standard is if it's bad enough to give you PTSD, it's something we might want you to be able to recover for. Most of the types of things that you can suffer PTSD from that don't involve physical contact have to do with something else really creepy, like a dead relative.


Posted by: m. leblanc | Link to this comment | 10-31-07 3:03 PM
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Dear s/b dead


Posted by: m. leblanc | Link to this comment | 10-31-07 3:03 PM
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30--
right, like it's a scene out of that old david byrne film, true stories. it's just about conceivable.


Posted by: kid bitzer | Link to this comment | 10-31-07 3:04 PM
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For it to be defamation, you have to say things that are provably false. We don't know whether "god hates fags" is true or not.

"God fates fags" fails the Popper test.


Posted by: Bave Dee | Link to this comment | 10-31-07 3:05 PM
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I've linked this before, but this unpublished book about the Phelps clan is really amazing (and the story of why it's unpublished is pretty remarkable too). Good Halloween reading.


Posted by: neil | Link to this comment | 10-31-07 3:05 PM
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Oh, poking around his website reminds me that fag-hating is his first principle. Nevermind that fundraiser. Someone else Free Fred Phelps!


Posted by: ogged | Link to this comment | 10-31-07 3:05 PM
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"hates"


Posted by: Bave Dee | Link to this comment | 10-31-07 3:06 PM
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36--
now i reread 30 and see "it just makes no sense".

dollars to donuts that's what prompted my poor predictable mind to think of the talking heads.


Posted by: kid bitzer | Link to this comment | 10-31-07 3:06 PM
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31. I'm down with it, assuming you mean raising money to hire some thugs with baseball bats to put him in a wheelchair Krauthammer style.


Posted by: Hamilton-Lovecraft | Link to this comment | 10-31-07 3:07 PM
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You've seen that movie, Bitzer? Where were you during the obscure quotations thread, dammit? I could've scored!


Posted by: neil | Link to this comment | 10-31-07 3:07 PM
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I'm pretty close to a First Amendment absolutist, and this case doesn't cause me any discomfort. As previously noted, the bar for IIED claims is high in theory and higher in practice. It's close to impossible for a public figure to win a libel claim under U.S. jurisprudence. The only thing that gives me pause is the size of the award (which will probably be reduced on appeal anyway).

Of ogged wants to get exercised about private parties using state enforcement of civil judgments to suppress free speech, the place to start is with copyright law, e.g. what the Scientologists have done to suppress criticism and what commercial copyrightholders have done to limit the scope for derivative works.


Posted by: Knecht Ruprecht | Link to this comment | 10-31-07 3:08 PM
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45

Check this one out.


Posted by: ogged | Link to this comment | 10-31-07 3:09 PM
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Speaking of the Krauthammer thread, I just want to say that when Phelps does finally die, I'm going to prove that I'm better than him by staying well away from his funeral.

The next day, after the family has gone home to grieve in peace -- that's when I'll go piss on his grave.


Posted by: Hamilton-Lovecraft | Link to this comment | 10-31-07 3:11 PM
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God fêtes fags.


Posted by: slolernr | Link to this comment | 10-31-07 3:12 PM
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43--
i stayed away from that thread. i also saw the movie a long, long time ago.

45--maybe fred phelps is a wanna-be borat?


Posted by: kid bitzer | Link to this comment | 10-31-07 3:13 PM
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48 --- I think of him more as a wanna-be human.


Posted by: soup biscuit | Link to this comment | 10-31-07 3:15 PM
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While IIED is a cause of civil action under anglo-saxon common law, Phelps could be prosecuted criminally in other jurisdictions.

Under § 168 of Germany's Criminal Code ("Disturbance of the Peace of the Dead"), you can be prosecuted for "malicious mischief" ("beschimpfenden Unfug") at a gravesite or funeral.


Posted by: Knecht Ruprecht | Link to this comment | 10-31-07 3:18 PM
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51

BESCHIMPFENDEN DER CHIMPEROR


Posted by: EIGENSINNIG GROßMUTTER | Link to this comment | 10-31-07 3:21 PM
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52

To bring this together with the torture thread, here's some excerpts from the book, via two of Phelps' children who escaped (of which more in the book):

Mark Phelps feels nauseated whenever he remembers that night. He was hit over 60 times and his brother, Nate, over 200 with a mattock handle. Nate went into shock. Mark didn't. A boy who became a compulsive counter to handle the stress, Mark counted every stroke. His and Nate's. While their father screamed obscenities and his brother screamed in pain. Every 20 strokes, their mother wiped their faces off in the tub. Nate passed out anyway. That was Christmas Day....

Sometimes Pastor Phelps preferred to grab one child by their little hands and haul them into the air. Then he would repeatedly smash his knee into their groin and stomach while walking across the room and laughing. The boys remember this happening to Nate when he was only seven, and to Margie and Kathy even after they were sexually developed teenagers. Nate recalls being taken into the church once where his father, a former golden gloves boxer, bent him backwards over a pew, body-punched him, spit in his face, and told him he hated him....

Mark remembers the family coming back once to find Pastor Phelps jogging around the dining room table, beating the sobbing boy with a broom handle; while doing so, he was alternately spitting on the frightened child and chuckling the same sinecure laugh so disturbing to those who've seen him on television....

Nate remembers Marge bringing home bad grades one day and going running to avoid a beating. When she got back, she was in an exhausted state. Fred beat her anyway. So badly, she lost consciousness and lay in a heap on the floor. Then Pastor Phelps kicked his daughter repeatedly in the head and stomach while she was out....

"When he beat us, he told us if it became a legal case, we'd pay hell," says Nate. "And we believed him. At that time, there was nothing we wanted to see more than those charges dropped. When the guardian ad litem came to interview us, we lied through our teeth."


Posted by: neil | Link to this comment | 10-31-07 3:26 PM
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With the complete understanding that Phelps is a hateful, malevolent loon, you have to admit that he's got some consistency. Wingnut-style haters act like their desires to expel/repress immigrants/Muslims/gays are consistent with the modern American dream. Phelps, on the other hand, hates outsiders of all kinds (down to Catholics and Jews), realizes that the US is inclusive in rhetoric and often in substance, and therefore hates the US itself.


Posted by: Minivet | Link to this comment | 10-31-07 3:29 PM
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52: The man should have his hands severed.


Posted by: Flippanter | Link to this comment | 10-31-07 3:31 PM
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Having read 52, malevolent maleficent.


Posted by: Minivet | Link to this comment | 10-31-07 3:32 PM
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Phelps, on the other hand, hates outsiders of all kinds (down to Catholics and Jews)

Don't forget the Irish.


Posted by: Matt F | Link to this comment | 10-31-07 3:34 PM
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52 really is sickening.

50, on the other hand, makes me want to see rollover text saying "beschimpfenden Unfogged".


Posted by: kid bitzer | Link to this comment | 10-31-07 3:35 PM
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that's when I'll go piss on his grave.

I've often wondered how secure Bush's grave will be, or if they'll just install a trough for all the folks who will be lining up.


Posted by: Chopper | Link to this comment | 10-31-07 3:47 PM
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52: Yuck.


Posted by: Gonerill | Link to this comment | 10-31-07 3:48 PM
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52 totally takes the fun out of Fred Phelps. Way to go, Neil.


Posted by: ogged | Link to this comment | 10-31-07 3:50 PM
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27: Oh, if we're suing God for IIED, that's not even where we'd start. Pain, aging, sickness, and death? Childbirth?
Documentation here.


Posted by: Tom Scudder | Link to this comment | 10-31-07 3:51 PM
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Fuck you, Phelps.


Posted by: Cala | Link to this comment | 10-31-07 3:52 PM
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52: damn. that man is looking for a world of hurt.

58: iirc, there is a guy who has been going around videoing himself dancing on presidents graves. For bush, I prefer the trough option. If they do it right, should be able to keep a lush garden going around it, no problem.


Posted by: | Link to this comment | 10-31-07 3:52 PM
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63wuzme


Posted by: soup biscuit | Link to this comment | 10-31-07 3:53 PM
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I really wonder how this verdict can stand up. There is a limit on how far the 1st amendment protects invasion of private lives, and this is all even more so unknown ground because there have been hints that some in the Supreme Court are willing to reconsider things like Sullivan (the case noted above that holds that public figures have to show, more or less, intentional or reckless falsehood to win a libel case. BTW, whoever noted that Sullivan answers the question of whether the 1st amendment reaches into lawsuits between private individuals is right. It's a limit on state power, but that includes the state's power to enforce civil judgments).

I'll stop by saying this judgment really makes me queasy-- I'd hate to see it generalized to other kinds of protests, and, if I'm reading the news stories right, it will be if it stands up. Fred Phelps is one of the most repulsive figures in America. But any general principle that might muzzle him will muzzle the antiwar side next, I promise.


Posted by: TomF | Link to this comment | 10-31-07 3:56 PM
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65: Do sexual harassment claims, where the harassment was purely verbal, bother you as well? Because if they don't, and I'm guessing they don't, this shouldn't. IIED is a very limited cause of action -- I wouldn't worry about this as a slippery slope at all.


Posted by: LizardBreath | Link to this comment | 10-31-07 3:58 PM
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I don't see a protest 1000 feet out in a public space (that's how what Phelps did is being reported) as being an analog to verbal sexual harassment in a workplace.

I've not looked at sexual harassment cases in a while but would have trouble imagining one that had quite the public-protest aspect this case has.


Posted by: TomF | Link to this comment | 10-31-07 4:09 PM
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65: It does seem like a difficult principle.

Thought experiment --- If Phelps protested some other kids funeral and some family member ran over and beat the snot out of Phelps a) would the police intervene if present b) would they intervene veeeeeeeeeeerrrrrrrrrry slowly c) assuming charges were laid, could anyone find a jury with a chance of conviction?


Posted by: soup biscuit | Link to this comment | 10-31-07 4:13 PM
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Late to the game: agree with all that there's no First Amendment issue. That limits only state action, not private censureship, although interesting would be to analyze whether military funerals in those Veterans' cemetaries would be a sort of public fora (my guess is that they are not; and grieving parties have a reasonable expectation that their site of mourning is not akin to the public square where hecklers may flourish).

Yes IIED is an icredibly high bar and limited cause of action. Also difficult to assess damages, which is why such claims are rarely pursued. It's not just hard to prove, it's hard to determine the remedies. .

Also, LB is awesome for bringing up the sexual harassment analogy.

w-lfs-n: Libel is written, slander is spoken, both must be false, standards for malicousness/negligence differ depending on whether the person is a public or private figure, and inwardly expressed thoughts are just you being your snarky self.


Posted by: Belle Lettre | Link to this comment | 10-31-07 4:13 PM
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67: I'm not saying it's a tight analogy, just that there are going to be cases where 'just speech' is tortious, that don't appear to constitute a First Amendment problem.


Posted by: LizardBreath | Link to this comment | 10-31-07 4:14 PM
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69: Hey, happy birthday! (I read everyone's blog.)


Posted by: LizardBreath | Link to this comment | 10-31-07 4:16 PM
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Ooh, someone brought up the public space issue.

I don't agree that cemetaries are public fora. It totally depends the place. I can imagine this being a privately-run cemetary in which military funeral ceremonies are permitted. If government owned, maybe--but there are lot of municipally owned fora that are not akin to places where speech may run free, like the public square. There's time, place, manner restrictions on all public speech in public fora. You have to get permits to protest, and this guy is just crashing funerals.


Posted by: Belle Lettre | Link to this comment | 10-31-07 4:16 PM
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Ooh, someone brought up the public space issue.

I don't agree that cemetaries are public fora. It totally depends the place. I can imagine this being a privately-run cemetary in which military funeral ceremonies are permitted. If government owned, maybe--but there are lot of municipally owned fora that are not akin to places where speech may run free, like the public square. There's time, place, manner restrictions on all public speech in public fora. You have to get permits to protest, and this guy is just crashing funerals.


Posted by: Belle Lettre | Link to this comment | 10-31-07 4:16 PM
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Thanks, LizardBreath!!!!

(and thanks for reading!)


Posted by: Belle Lettre | Link to this comment | 10-31-07 4:22 PM
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68. As disgusting as Phelps is, I would hope the hypothetical police would intervene quickly. But not too quickly to stop the first punch.

Of course, I also hope the first punch breaks his nose. But I don't hope it drives bone shards into his brain. But I wouldn't cry bitter tears if it did. I hold a nuanced position here.

Regarding the verdict in the hypothetical assault trial, what's the current jurisprudential thinking on "fighting words" and assault?


Posted by: Hamilton-Lovecraft | Link to this comment | 10-31-07 4:24 PM
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Ah -- "fighting words" are not a defense or excuse for assault, but: "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting words" those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."


Posted by: Hamilton-Lovecraft | Link to this comment | 10-31-07 4:28 PM
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75: Well that's pretty much my thinking, and it isn't completey random why I brought that up. Much like we can wonder about the wedge implications of a civil ruling like this, we can wonder about social boundaries around what is a) legal but b) completely fucking obnoxious.

While in some abstract sense we can probably all agree that nobody ought to be beaten up for what they say, it's hard to feel badly for the guy (in a non-life threatening situation) or particularly demonize a cop who would drag their heels a bit. But what does that say about the principles involved?


Posted by: soup biscuit | Link to this comment | 10-31-07 4:30 PM
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The more closely analogous cases are the Operation Rescue folks.

There are lots of permissible limits on free speech. Along with the 'reasonable regulation of time, place, and manner' mentioned above, there are such things as
- shouting fire etc.; - inciting to crime, involving a likelihood of imminent lawless action; - aiding of abeting a crime (e.g. a NM case where the bystanders shouting "kick him again" at a fight outside a bar were prosecuted); - fraud, which usually involves speech

In the recent 'bong hits for jesus' case, according to the commentators I've read, the Supremes have also again been making distinctions based on the content of the speech. To the extent that Phelps is clearly engaged in political speech (as distinct from sexually harassing speech, which is personal, and the personal is apolitical) I think it deserves greater protection. The fact that we don't like the content of Phelps' speech should just be a sign that it deserves more protection


Posted by: Michael H Schneider | Link to this comment | 10-31-07 5:01 PM
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Eh? Isn't it the "crashing funerals" bit rather than the "gays suck" bit that gets people really shaking their heads? But I guess since I don't like the idea of people crashing funerals I should take that as a sign that crashing funerals should be protected.


Posted by: Barbar | Link to this comment | 10-31-07 5:13 PM
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But what does that say about the principles involved?

It says that the legal and social principles we hold dear can't be perfectly realized in an imperfect world. That the law can't prevent all kinds of assholism. That the law cannot cover every conceivable case -- it's in some ways a good thing that cops, juries, and judges have some amount of discretion, because it allows the guy who punches Fred Phelps to get off more lightly than the guy who punches ... hmm, are there any nice guys left in the world? ...say, John Hodgman.


Posted by: Hamilton-Lovecraft | Link to this comment | 10-31-07 5:14 PM
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it deserves more protection

From the government, sure. By the government? Eh.


Posted by: apostropher | Link to this comment | 10-31-07 5:15 PM
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78: Phelps isn't engaged in political speech. He's engaged in the intentional infliction of emotional distress.

I totally defend his right to speak his piece in Union Square in San Francisco. That would be political speech.

Also, just because action X is legal doesn't mean that performing action X doesn't make you a colossal asshole.


Posted by: Hamilton-Lovecraft | Link to this comment | 10-31-07 5:17 PM
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If I crashed a funeral and said "I'm really sorry about your loss" to the mourners, whom I didn't know from Adam, I seriously doubt anyone or any law would hold it as a crime (or a tort). Phelps's misbehavior has something more to do with the content and intentions of his speech.


Posted by: Jackmormon | Link to this comment | 10-31-07 5:27 PM
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Is there a rough consensus on what constitutes political speech?

It's not obvious to me that this is political speech (though the utterances obviously touch on some political themes), but I'm not sure how it is commonly (and esp. legally) defined.


Posted by: Invisible Adjunct | Link to this comment | 10-31-07 5:28 PM
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Phelps isn't engaged in political speech. He's engaged in the intentional infliction of emotional distress.

Perhaps this is a matter of perspective. I came of age (so to speak) in the days of the Youth Interntional Party. I remember Pigasus, and the Chicago 7, and I remember the emotional distress and outrage tht greeted some of those instances of political expression. Even today we have Coulter and Malkin and their ilk, whose conduct and speech strikes me as totally outrageous. Outrageous conduct has always been part of politics. Indeed, making people feel bad about their political actions and beliefs - inflicting emotional distress - is an important part of political rhetoric.

So I'm having a hard time seeing a principled distinction here.


Posted by: Michael H Schneider | Link to this comment | 10-31-07 5:37 PM
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OK, crashing funerals and being a ridiculous ass to people who are at a freaking funeral. It's really not the politics. My point still stands.


Posted by: Barbar | Link to this comment | 10-31-07 5:41 PM
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80: I like the John Hodgman story here, starting at about 35:20 (really him and his spouse on a story he tells repeatedly).


Posted by: Merganser | Link to this comment | 10-31-07 5:44 PM
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84: I don't know what defines political speech. As JM points out, we're clearly having a problem because of the content of the speech.

I guess I was pulling a definition from thin air, defining political speech as saying something about the way society in general, or its institutions, should be constituted. Talk about what the laws are or should be, or what government should ( or shouldn't) do.

By this definition, Phelps' statements about these deaths being God's punishment for society's toleration of sin surely look political.


Posted by: Michael H Schneider | Link to this comment | 10-31-07 5:45 PM
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9/11 was a political act.


Posted by: Rudy Giuliani | Link to this comment | 10-31-07 5:50 PM
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Isn't it religious speech?


Posted by: neil | Link to this comment | 10-31-07 5:58 PM
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Speech can be both religious and political. Those are not disjunct categories. Think abolition, or ML King, or GW Bush, Falwell, Dobson, etc.


Posted by: Michael H Schneider | Link to this comment | 10-31-07 6:00 PM
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Why the focus on political speech, then? Because that's more restricted?


Posted by: neil | Link to this comment | 10-31-07 6:03 PM
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I focus on political speech because it's crucial to democracy. You can't have an informed electorate without political speech. You can't have free elections without free speech.

Personally, I could care less about purely religious speech. The purely internal affairs of religions are none of my business.


Posted by: Michael H Schneider | Link to this comment | 10-31-07 6:14 PM
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Michael, forgive me if I'm mistaken, but I'm picking up a troll vibe from you.

IMO, it's the combination of the content and the venue. If Phelps runs into the family on a city street and tells them that their son is burning in hell, I don't think that's tortable. If Phelps crashes the funeral and offered sincere-sounding condolences, I don't think that's tortable.


Posted by: Hamilton-Lovecraft | Link to this comment | 10-31-07 6:23 PM
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So hey, can I go into a crowded theater in Southern California and yell "FIRE! ARNIE'S NOT DOING ENOUGH ABOUT FIRE! WE COULD ALL BURN IN HERE! THERE COULD BE A RAGING FOREST FIRE ABOUT TO SWEEP THROUGH THIS NEIGHBORHOOD RIGHT NOW BECAUSE OUR BOOBIEGROPING GOVERNOR ISN'T FIGHTING THE FIRE! FIRE! WE'RE ALL GONNA DIE AND IT'S ALL ARNIE'S FAULT!"

I mean, if you're going to be a free political speech absolutist and all.


Posted by: Hamilton-Lovecraft | Link to this comment | 10-31-07 6:25 PM
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I don't intend to be taking a position, or making statements, purely to cause trouble or disagreement.

From Ogged's original post, both the title and the line "but surely there are free speech issues here?" I thought there might be room for some exploration of the issue. I hope I am being civil. It's something that I've been thinking - vaguely - about for a long time.

I don't know all the details about what Phelps did in this case. I don't know which side of the line this case falls on, but I think there should be a line. I don't know how to draw the line.

I don't think the line should be drawn in terms of emotional distress, and I don't think that labelling something IIED answers (for reasons I hope I've stated). I agree that Phelps is an ass, but I also agree that that's not something which the law should adress. Being an ass, without more, should be protected.

I do think that a healthy, vigorous, free society must tolerate a lot of both dissent and assholness. I believe that the use of the power of the State - the guys with guns who are the enforcers of both criminal and (ultimately) civil law - to enforec conformity with some notion of what's merely polite is pernicious.

I think - but am not sure - that the line should be drawn somewhere around political speech (rather than non-political) and around public rather than private speech, but I'm not sure. So I think you're right to say it's a combination of venue and content, but I'd like a little more depth in the analysis.


Posted by: Michael H Schneider | Link to this comment | 10-31-07 6:37 PM
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Y'know, I'm fine in principle with IIED being actionable, given the high bar, but I wonder: is it possible that the bar was only found to be met because of the (understandably) strong feelings against Phelps and company? If so, that would be dangerous, since who's next?


Posted by: Minivet | Link to this comment | 10-31-07 6:41 PM
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95: No, somewhere back around 78 I mentioned shouting FIRE as a permissable limit.

That's usually distinguished on the basis that it's likely to produce imminent and serious bodily harm rather than emotional distress.


Posted by: Michael H Schneider | Link to this comment | 10-31-07 6:42 PM
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97. I'm also okay with IIED in principle.

The (few) cases I recall reading about were all private and non-political. For example, two guys think "Joe is serving in Iraq. Wouldn't it be a hoot if we dressed up as Officers and went and told his mother that he'd been killed? She'd crap in her pants, it'd devastate her"

I'd award damages there, but I think there's some sort of distinction somewhere.


Posted by: Michael H Schneider | Link to this comment | 10-31-07 6:48 PM
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97. "First they came for the Phelps-scale assholes, but I was not a Phelps-scale asshole so I did not speak out. Then they came for the Communists, and I remembered Niemoller's quote, and I spoke out."


Posted by: Hamilton-Lovecraft | Link to this comment | 10-31-07 7:01 PM
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BTW, I'm halfway through that Addicted to Hate book linked above and it's really fascinating. It's not even that well-written, but it's so clarifying.

Has anyone already suggested that Fred Phelps would be a great Halloween costume?


Posted by: A White Bear | Link to this comment | 10-31-07 7:34 PM
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is it possible that the bar was only found to be met because of the (understandably) strong feelings against Phelps and company?

Or is it more likely that the strong feelings against Phelps and company exist because he's meeting that bar? It's not as if America is particularly offended by people who believe that God isn't fond of fags, after all.


Posted by: neil | Link to this comment | 10-31-07 7:46 PM
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Apparently the $2.9 million verdict was only for compensatory damages. The jury decided later in the afternoon to impose punitive damages of $6 million for invasion of privacy and $2 million for causing emotional distress. Ouch.


Posted by: neil | Link to this comment | 10-31-07 8:06 PM
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It's not as if America is particularly offended by people who believe that God isn't fond of fags, after all.

Exactly. It wouldn't surprise me to learn that some of the jurors held to a milder (and less actively vindictive) version of Phelps' position, even though they've agreed to $10.9 million in various damages.

I suspect the principle of free speech is running up against some other social principle that is far older, and that is not easily captured or articulated in legal/constitutional terms. Something to do with reverence for the dead, for example.


Posted by: Invisible Adjunct | Link to this comment | 10-31-07 8:17 PM
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The fact that the deceased was in the military was probably also a factor in the jury's sense of outrage.


Posted by: Bizzah | Link to this comment | 10-31-07 8:20 PM
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Quite interesting analysis, with links to more analysis:

http://www.concurringopinions.com/archives/2007/11/public_vs_priva.html

(sorry I don't know how to embed links)


Posted by: Belle Lettre | Link to this comment | 10-31-07 8:33 PM
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104: For some, the outrage of shouting that God hates fags at a funeral is the implication that the deceased was a fag.


Posted by: unimaginative | Link to this comment | 10-31-07 8:59 PM
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... reverence for the dead ...
... deceased was in the military ...

Solove (BL's link in 106) makes the public/private nature of the location crucial, saying "These protests could readily be held elsewhere."

I think he's dead wrong on both counts.

There's almost no public space anymore. Everything has been privatized and restricted, from malls to gated suburbs to courthouses and airline terminals. I was trying to gather signatures for congressional nominating petitions last cycle and was amazed at how difficult it was to find places where it was permitted. I'd say that the 1st Amendment right to free speech (and peaceably assemble) should apply even to private spaces if they function like public spaces.

Sequestering dissenters, puttnig them in little easily ignorable spaces (like GWB's 'free speech zones') effectively silences them. The name of the game is being heard, and if you can't go where your message can be heard, your right to speak is meaningless. A protest elsewhere wouldn't sound as unsweet.

The law shouldn't be enforcing customs and norms such as reverence for the dead and honoring veterans. That's exactly the sort of majoritarianism that the constitution was supposed to prohibit.


Posted by: Michael H Schneider | Link to this comment | 10-31-07 9:02 PM
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For example, two guys think "Joe is serving in Iraq. Wouldn't it be a hoot if we dressed up as Officers and went and told his mother that he'd been killed? She'd crap in her pants, it'd devastate her"

I don't see a difference between what Phelps does *at people's funerals* and this hypothetical. His speech is political, but you don't have the right to be disruptively political any place you want to--you can't, for example, walk into a classroom and start yelling about the war in Iraq; you'd be arrested. The family funeral of a soldier, even a military soldier, is a private event, and if holding a political protest where you say things like "God hates you" at someone's funeral isn't intentional infliction of emotional distress, I don't know what is.

He can do this shit at Arlington if he wants to, he could (if a graveyard were public, rather than privately owned, which I don't know) do it at a graveyard. He can do it in front of city hall, he can do it on the DC Mall. He can do it with a goat. . . okay, well, maybe not.

You're not allowed to turn someone's private celebration of, say, Christmas, into a demonstration for freedom of religion; you're not allowed to turn someone's wedding into a demonstration for gay marriage. Same thing.


Posted by: bitchphd | Link to this comment | 10-31-07 9:13 PM
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The law shouldn't be enforcing customs and norms such as reverence for the dead and honoring veterans. That's exactly the sort of majoritarianism that the constitution was supposed to prohibit.

Nonsense. The constitution is meant to protect the rights of citizens, and it's not at all a stretch to say that this includes the right to hold a dignified ceremony to mourn one's dead.

The slippery slope argument here is bad. The entire purpose of things like juries and civil suits and IIED, in my non-lawyer opinion, is to exercise *judgment* about what is and isn't an outrageous violation of other people's rights/autonomy/dignity/property/privacy/whatever you want to call it. It doesn't follow that if protesting someone's funeral amounts to IIED, that protesting the war anywhere else is IIED, or that objecting to it is. It's precisely the personal nature of the thing that's the problem, coupled with the outrageousness of the claims.


Posted by: bitchphd | Link to this comment | 10-31-07 9:19 PM
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The law shouldn't be enforcing customs and norms such as reverence for the dead and honoring veterans. That's exactly the sort of majoritarianism that the constitution was supposed to prohibit.

I for one am sick of getting pushed around by the dead majority.


Posted by: neil | Link to this comment | 10-31-07 9:29 PM
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The constitution is meant to protect the rights of citizens, and it's not at all a stretch to say that this includes the right to hold a dignified ceremony to mourn one's dead.

Come on now, the Constitution protects citizens' right to shout and hold signs, not their right to hold a funeral without anybody shouting and holding signs nearby. The Phelpses know their rights, and they don't get arrested, despite doing their show a hundred times a year.


Posted by: neil | Link to this comment | 10-31-07 9:36 PM
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108: I look forward to the day when kooky anti-Semitic conspiracy theorists hand out copies of The Protocols of the Elders of Zion within 300 feet (or whatever the agreed-upon zone) of randomly chosen Bar Mitzvah ceremonies. Somebody's grandmother should carry a placard that says, "Filthy Jewboy," or something along those lines. Let a thousand flowers bloom. Surely democracy could only be strengthened by such a flourishing of irrational hatred healthy dissent? And George Bush would not be in power if only we had all agreed to direct our political grievances toward private citizens enacting rites and rituals of an essentially private (non-state) nature?


Posted by: Invisible Adjunct | Link to this comment | 10-31-07 9:42 PM
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I should go to sleep because I'm too tired to know where to begin, but I think I'll try this:

It's precisely the personal nature of the thing that's the problem, coupled with the outrageousness of the claims

First, didn't we all grow up chanting "the personal is politial"? Isn't that an article of faith by now? It's the personal aspect that makes something politicaly powerful.

Second, is it the outrageousness of the claims or is it the outrageousness of the actions and speech in support of the claims? That is, is it that the claim "God hates fags" is ourageous, or is it the irreverance for dead soldiers?

okay, one more:

The entire purpose of things like juries and civil suits and IIED, in my non-lawyer opinion, is to exercise *judgment* ...

And the entire purpose of the Constitution is to take certain judgments away from judges and juries and legislators. The judgement that 'this political speech is too terrible to tolerate' is, I assert, one such judgment.


Posted by: Michael H Schneider | Link to this comment | 10-31-07 9:44 PM
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IA, 113: it has happened, and I'm on the side of the ACLU

http://www.kansaspress.ku.edu/strwhe.html


Posted by: Michael H Schneider | Link to this comment | 10-31-07 9:49 PM
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A better link:

http://www.history.ucsb.edu/faculty/marcuse/classes/33d/projects/skokie/overview.htm

I hope that link doesn't wrap.


Posted by: Michael H Schneider | Link to this comment | 10-31-07 9:57 PM
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113, despite outward appearances, this really isn't about hating the fags. As LB wisely put it earlier on, it's hard to see it as anything but weird performance art, because it makes no sense -- there's no reason to want to do it. It reflects badly on their views and inspires people to reflexively assume the opposite position, not to mention making them personally the subjects of burning hatred. Note that literally no one has joined WBC without being born to or marrying a Phelps (read that book I linked to learn why). Popular movements don't grow this way; only psychopathic loners do it, and it's wrong to limit everybody's rights just to restrain a few psychopaths.

But I still think the families should be able to sue them. They're targeting their victims with intentionally offensive messages, and they have a too-well-established pattern, the IIED thing is a slam dunk.

I wonder if the ACLU is interested in this one.


Posted by: neil | Link to this comment | 10-31-07 10:00 PM
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The judgement that 'this political speech is too terrible to tolerate' is, I assert, one such judgment.

That isn't the judgment being rendered; the man has a perfect right to say his terrible things in public venues.

didn't we all grow up chanting "the personal is politial"?

No, we didn't. And that phrase doesn't mean that we forego all right to privacy. It means that we should *think about* the political causes of private acts. If you want to argue that people shouldn't have military funerals at all, then that's one thing; if you want to interrupt someone's funeral to shout that god hates fags, that's something else entirely.


Posted by: bitchphd | Link to this comment | 10-31-07 10:05 PM
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NYT v. Sullivan didn't say you can't have tort claims arising from political speech, just that the bar is higher than for normal defamation. Similarly, in Hustler v. Falwell, the Court didn't so that no claim for IIED could lie, just that a public figure couldn't pursue one, based on speech, without showing defamation and actual malice.

A non-public figure though need not make such a showing. Mess with ordinary folks, and expect other ordinary folks, on jury, to whack you but good.


Posted by: CharleyCarp | Link to this comment | 10-31-07 10:17 PM
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I used to make the same argument for absolute free speech that Michael Schneider does. I've given it up for pragmatic reasons.

The problem is that when we say people should accept some kinds of hurt (emotional pain, grief, rage, etc.) without doing anything public or visible about it, we select for a society of public speakers who genuinely don't feel honest emotions or can suppress them and who have no interest in what their verbal attacks do to their victims. In short, we get the Republican noise machine.

I simply don't find the argument that we should all get so callous to be a good one. Free speech is, for me, a means to an end - a society in which it's possible to consider competing ideas and work toward the truth. Privileging the sociopaths and empathy-deficient among is not, I think, likely to advance that end much. The fact that I can construct a very hateful tirade against you that lies just inside some arbitrary boundary - or better yet, beyond it but in ways that let me count upon others defending me for the transgression anyway - is not a fact that improves society and warrants widespread distribution. It's not even morally neutral. If I do it and you help me escape consequences for doing it, I provide a positive example to the emotionally numb and the ignorant or confused, and help increase the odds of there being more like that in the future.

I would like to see a lot more IIED cases taken to court. I imagine most of them would lose, and that's fine with me. But I think there's a lot of crap flying around the field of discourse that ought to be scooped up and thrown out, and the crappers penalized in the only ways they'll understand.

I'm tired of living in a society that rewards cultivated sociopathy quite so much.


Posted by: Bruce Baugh | Link to this comment | 10-31-07 10:41 PM
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I guess what I'm most concerned about is the existence of a tort. Anyone have a link to the court documents? Did the father really prove severe physical/mental distress?


Posted by: Minivet | Link to this comment | 11- 1-07 5:46 AM
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While in some abstract sense we can probably all agree that nobody ought to be beaten up for what they say

I don't agree. There are circumstances where people deserve to get the shit knocked out of them for what they say. Phelps at a funeral being a case in point.

I wouldn't want our legal system to sanction that, of course.


Posted by: nattarGcM ttaM | Link to this comment | 11- 1-07 6:07 AM
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Minivet, it's a federal case, so anyone with a PACER account can get anything. It's No. 06-1389. I see there's a motion for a mistrial pending -- at least I don't see an order on the docket. Based on remarks the judge made at trial.

The pre-trial statement is pretty thin on injury -- but claims that the plaintiff's diabetes was exacerbated. Obviously, though, the testimony (and I suppose there was an expert as well) is going to make a big difference.

Defendants will file post-trial motions in the next few days, most likely, that will flesh out whatever claims they might have that the evidence was insufficient.

The opinion denying Defendants' motion to dismiss is worth a read: they challenged everything (including service, amount in controversy, and diversity), raised Hustler, and said that the First Amendment precluded the Maryland tort of giving publicity to a private life. Here's an excerpt concering that tort, and a related one:

In Maryland, "[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." Restatement (Second) of Torts § 652B; see also Trundle v. Homeside Lending, Inc., 162 F. Supp. 2d 396, 401 (D. Md. 2001). Also, "[o]ne who gives publicity to a matter concerning the private life of another is subject to liability to the other for unreasonable invasion of his privacy, if the matter publicized is of a kind which (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public." Furman v. Sheppard, 744 A.2d 583, 588 (Md. Ct. Spec. App. 2000) (citing Klipa, 460 A.2d at 607; see also Restatement (Second) of Torts § 652D.

Posted by: CharleyCarp | Link to this comment | 11- 1-07 6:24 AM
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I wouldn't want our legal system to sanction that, of course.

Jury nullification exists for a reason.


Posted by: apostropher | Link to this comment | 11- 1-07 7:56 AM
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Oh SHIT. I forgot to turn in my card for federal jury duty. Uh, can I just leave it under this pile of unopened bills?


Posted by: Armsmasher | Link to this comment | 11- 1-07 7:57 AM
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Boy, I hate facts. I don't have a PACER account, so I've been reading the press reports.

First, it wasn't a private space, as best as I can tell. Here's the Baltimore Sun,
http://www.baltimoresun.com/news/local/bal-westboro1031,0,7191706.story?page=2

"They said they waved placards -- "Thank God for IEDs" and "Fag Troops" among others -- near the funeral motorcade to bring attention to their message.

Snyder testified that he never saw the content of the signs as he entered and left St. John's on the day of his son's funeral. He read the signs for the first time during television news reports later that day."

A funeral motorcade is a parade on a public street. If the Phelps' were standing on the sidewalk when the motorcade went by I don't see how it could be said that they intruded into a private space. If the father didn't see the signs then, but only had the signs intrude into his awareness when he watched tv, we're at another step removed. The tv news is hardly his private space.

Second, I don't see any publicity given to things private, as required by the Restatement and cases CC posted (thanks for posting them). The only fact given publicity was the soldier's death - and this was clearly a public fact. Once you have a parade to commemorate something, I can't think it remains private.

I hate it when the resuls turn on the facts rather than elucidating a constitutional principle.This surely ooks like a case of the jury acting on its passions and prejudices.


Posted by: Michael H Schneider | Link to this comment | 11- 1-07 8:52 AM
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120: I simply don't find the argument that we should all get so callous to be a good one.

I agree that we shouldn't simply accept, and implicitly condone, ugly speech. We should speak against it, we can shame, and shun, and oppose.

However, the law and the legal system is too heavy and too blunt an instrument to deal with ugly speech. A lawsuit is too expensive and will ruin most peoples' lives. Using the legal system to opose ugly speech will simply make most people to afraid to speak, and that's the wrong result.


Posted by: Michael H Schneider | Link to this comment | 11- 1-07 9:07 AM
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126: I haven't read the cases, and don't know much about IIED other than what I recall from law school. But I think it's probably a misreading to think that 'things private', means 'things secret from the public'. Think about, say, the harassment potential in taking a hideously unflattering picture of a little kid (or a grownup --I'm just trying to make the facts sympathetic), and slapping it up on billboards all over her home town with her name on it. There aren't any secrets being revealed -- she walks around in public looking like that -- but as someone who there's no legitimate news reason to be placed in the public eye, that kind of publicity is an injury.


Posted by: LizardBreath | Link to this comment | 11- 1-07 9:07 AM
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122 That's basically what I meant, that this isn't the sort of thing that you want codified in a judicial system, not that there aren't ever situation where everyone would agree that X had it coming.


Posted by: soup biscuit | Link to this comment | 11- 1-07 9:11 AM
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128: I think I can, in good faith, claim to be even more ill-informed than you (that's a joke, son) ((that's an allusion, ma'am)).

I think you'e right about the secretness of the fact given publicity (which I take to be the death in the service). However, in this case the fact had probably been published by the family in an obituary, as well as having the parade.

I also think there's legitimate public interest and concern about each and every American soldier's death in combat these days. Again, not meaning to stretch the analogy too far, that Nightline program in which Ted Koppel read the names of all the dead soldiers was proper, by my lights.


Posted by: Michael H Schneider | Link to this comment | 11- 1-07 9:16 AM
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130: No, what I meant is that a fact can be a private matter (the death of one's son, or what you look like in a grotesque photograph), without being secret (the obit was published, and you do look recognizably like that). The injury of publicizing your private affairs doesn't depend on secrecy.

The difference between Ted Koppel and Fred Phelps is in the specifics of what they were doing. Koppel wasn't shouting that God hated the dead soldiers, while Phelps was -- it would be unreasonable to be emotionally distressed by the first, but reasonable to be emotionally distressed by the second.


Posted by: LizardBreath | Link to this comment | 11- 1-07 9:21 AM
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I haven't read the thread, only the first few and the last few coments, but I'd question the "intent" component of IIED here. I believe there must be a demostrable intent to cause emotional distress. (Furthermore I think this is important so that we don't run into 1st Amendment issues.) IIED cases are generally extraordinarily cruel pranks. Was Phelps trying to cause distress or was he trying to spread a political message? It's something of a close question, but I think there's a winning argument for the latter, in which case I think the judgment against him was improper.


Posted by: Brock Landers | Link to this comment | 11- 1-07 9:27 AM
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132: That's fair, but I think you have to say that if the intent was to cause emotional distress that would otherwise qualify as IIED (again, this is a very high standard), and also a political intent, the political intent doesn't sanitize the IIED. That is, someone pulling a 'cruel prank' on Rudy Giuliani by convincing him that terrorists have obliterated NY, including his beloved wife and the nice couple he stayed with after his last marriage failed, that's IIED if it meets the standard even if there was also a political intent to see what he'd do under those circumstances.


Posted by: LizardBreath | Link to this comment | 11- 1-07 9:31 AM
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Sorry, once again I'm not being clear.

We've got two different torts, as I understand it: (a) giving publicity to to private life (see CC supra); and (b) IIED.

As I understand it, 'giving publicity' doesn't require the plaintiff to show emotional distress. Any sort of damage would do (reputation, perhaps). Nor would it be necessary to show that the publicizer intended harm. But I'm probably conflating things again.

I think I was sugesting above that for political speech, the political intent does sanitize the intent to cause distress. I was arguing that much political speech is intended to cause anguish ('I suported torture?') and remorse ('forgive me father, for I have voted Republican') and atonement ('I will support moveOn'). All those are distressing.


Posted by: Michael H Schneider | Link to this comment | 11- 1-07 9:38 AM
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The hypo in 133 seems right, but there you are clearly intending to cause Guiliani distress. That was my question: was Phelps intending to cause the families distress by picketing their funerals with bigoted signs, or was he just trying to spread his political message of bigotry and figured picketing funerals would be a good way to get publicity? It's conceivable that he wishes/hopes the families themselves don't even notice, he just wants the tv cameras. (Barely conceivable, but.)

I don't know--he may have made public statements that completely cut against this -- "These families are suffering and I'm out here hoping to make them suffer even more. They deserve it for being related to a homosexual" (or whatever) -- in which case I'd agree with you completely. But without some evidence that he's really out there trying to hurt people, I think his actions could be characterized as primarily political and only secondarily as distress-inducing. Cf. burning a US flag on the street in front of a veterans' center.


Posted by: Brock Landders | Link to this comment | 11- 1-07 9:47 AM
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Did the father really prove severe physical/mental distress?

Obviously common sense wouldn't stand up in a court of law, but I can't believe anyone could wonder whether *having protesters show up at your dead son's funeral* would constitute severe mental distress. Jeez, people.

That said. 126 makes sense--not the argument that a funeral process is a public event, so much, as the argument that if the father didn't even notice the placards until he saw them on the news, the funeral *itself* wasn't interrupted, and now we're more in the territory of "I was upset by a news editorial." Imho, the case depends on whether the protest disrupted the funeral *itself*, as opposed to whether it used the funeral as the occasion for a protest.


Posted by: bitchphd | Link to this comment | 11- 1-07 9:52 AM
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To be clear, MHS, I'm not sure the privacy counts went to the jury. They were in the case at the outset, and survived a motion to dismiss. I quoted the mention of them because they are interesting new torts, and the sort of thing that has become all the easier in the internet age.

Suppose anyone might have a claim against certain RW bloggers, for example?


Posted by: CharleyCarp | Link to this comment | 11- 1-07 10:09 AM
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I believe there must be a demostrable intent to cause emotional distress.

All I knows is what I reads in Wikipedia, but Wikipedia says this is not so. There has to be demonstrable intent to do something which can reasonably be concluded to cause emotional distress. Like delivering a fake death notice as a joke -- maybe you intended it to be funny but it's obviously distressing too.

OK, I do know a little more:

...on October 15, 2007, the Court granted summary judgment for the defendants on the defamation and invasion of privacy (publicity given to private life) counts.... The jury trail comenced on October 22, 2007 to hear the remaining counts of invasion of privacy (intrusion upon seclusion) and intentional infliction of emotional distress.


Posted by: neil | Link to this comment | 11- 1-07 11:29 AM
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138: okay, maybe I'm misremembering the intent requirement here. Although I'm not totally sure I trust wikipedia on this.


Posted by: Brock Landers | Link to this comment | 11- 1-07 11:56 AM
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You don't have to intend emotional distress in Maryland. Here'a an extended excerpt from vauls v. Lambros at the COSA:

A series of cases followed the recognition in Harris [CC note: the 1977 case recognizing the tort] where the of the tort of intentional infliction of emotional distress, each seeking an extension of the principles set forth therein to other factual scenarios. Most of the cases have failed to extend the doctrine. Continental Casualty Co. v. Mirabile, 52 Md.App. 387, 449 A.2d 1176 (1982), involved an action by an employee against a supervisor who repeatedly evaluated the employee as marginal, made faces and screamed at him and humiliated him by constantly moving him from one desk to another. A similar fate befell the plaintiff in Beye v. Bureau of National Affairs, 59 Md.App. 642, 477 A.2d 1197 (1984), where a discharged employee sought to recover damages from a supervisor who allegedly gave the plaintiff poor ratings, promoted less qualified individuals and tricked the plaintiff into resigning.

Two other cases holding that the facts alleged were insufficient to support a cause of action for intentional infliction of emotional distress involved debt collection agencies. In Dick v. Mercantile-Safe Deposit and Trust Co., 63 Md.App. 270, 492 A.2d 674 (1985), and in Hamilton v. Ford Motor Credit Co., 66 Md.App. 46, 502 A.2d 1057, cert. denied, 306 Md. 118, 507 A.2d 631 (1986), the collection agents engaged in a continuous course of harassing and threatening conduct including constant telephone calls, threats to ruin credit, attach property, and accusing the debtors of lying. Hamilton, like the present case, involved a judgment n.o.v. entered by the trial court which was affirmed on appeal.

On two occasions we have determined that the evidence was sufficient to support a claim for damages for emotional distress. Reagan v. Rider, 70 Md.App. 503, 521 A.2d 1246 (1987), involved molestation of a child which necessitated several years of therapy for the victim. The earlier case of Moniodis v. Cook, 64 Md.App. 1, 494 A.2d 212 (1985), is helpful in making a comparison with the present case. In both cases the court was dealing with sensitive, dedicated women. Mrs. Cook's commitment was to her job; Mrs. Vauls was very much involved in her church. The treatment accorded Mrs. Cook included attempting to force her to submit to a polygraph examination, reducing her working hours, threatening her with a transfer, testifying against her in an unemployment compensation hearing and ultimately firing her. The employer was insisting on the polygraph due to inventory shortages at certain Rite-Aid stores.

Mrs. Cook suffered to some degree from a pre-existing nervous condition. Her emotional state, following her discharge, deteriorated significantly. She became a recluse, consumed greater amounts of medication, slept most of the time, avoided contact with her neighbors and was unable to perform routine housekeeping chores for more than a year. The intent of management was to impose such conditions on those who refused polygraph tests that continued employment would be intolerable. It succeeded. On these facts, we held that whether the testimony had met the four factors set forth in Harris was a jury question.

The actions taken against Mrs. Cook were substantially more oppressive than the name calling, surveillance, obscene gesturing, threats to disfellowship her husband, telling appellant where to sit in church and having a telephone conversation recorded. We need not decide whether appellee's conceded intentional conduct was extreme and outrageous, because the emotional distress was not established as being "severe" in the sense that it was "of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it." Fletcher v. Western National Life Ins. Co., 10 Cal.App.3d 376, 397, 89 Cal.Rptr. 78 (1970).



Posted by: CharleyCarp | Link to this comment | 11- 1-07 12:33 PM
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was Phelps intending to cause the families distress by picketing their funerals with bigoted signs, or was he just trying to spread his political message of bigotry and figured picketing funerals would be a good way to get publicity? It's conceivable that he wishes/hopes the families themselves don't even notice, he just wants the tv cameras. (Barely conceivable, but.)

Not buying it. It's not like no one has ever told Phelps that what he does it hurtful. At some point we must switch to a presumption of bad faith.


Posted by: Hamilton-Lovecraft | Link to this comment | 11- 1-07 1:32 PM
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However, the law and the legal system is too heavy and too blunt an instrument to deal with ugly speech. A lawsuit is too expensive and will ruin most peoples' lives. Using the legal system to opose ugly speech will simply make most people to afraid to speak, and that's the wrong result.

Not buying it. Lawsuits against Phelps aren't deterring Phelps. How are they going to deter less objectionable political speech?

Second, is it the outrageousness of the claims or is it the outrageousness of the actions and speech in support of the claims? That is, is it that the claim "God hates fags" is ourageous, or is it the irreverance for dead soldiers?

At least B and I have, in this thread, made it clear that we feel Phelps has the right to make the claim that 'God Hates Fags' and to hold up signs to that effect at some greater distance from a funeral. I think most people debating here in this thread probably agree that Nazis have a right to speak in Skokie.

Reverence for the dead is probably the principle that puts it over the edge here.


Posted by: Hamilton-Lovecraft | Link to this comment | 11- 1-07 1:38 PM
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I evidence no remorse for triple-posting.

FWIW, Michael, with more information on how intrusive Phelps' protest was in this case, I think the jury probably decided wrongly on the technical merits of this particular case, but I don't really consider that to be a failure of the system as a whole. As I said before, the law can't perfectly demarcate all behavior into acceptable/legal and unacceptable/criminal, and if from time to time someone who deliberately spends that much time close to the jagged line gets smacked for it, I'm not going to weep.


Posted by: Hamilton-Lovecraft | Link to this comment | 11- 1-07 1:46 PM
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Reverence for the dead is probably the principle that puts it over the edge here.

Not for me. It's more respect for people who have just lost a child, for fucks' sake. The dead don't care, but their relations sure as shit do.


Posted by: bitchphd | Link to this comment | 11- 1-07 1:48 PM
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144. Heh. I don't think we disagree; the stock phrase "reverence for the dead" really is about the living.


Posted by: Hamilton-Lovecraft | Link to this comment | 11- 1-07 1:57 PM
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I haven't had time to look at the news stories, but from the court filings, the anti-Catholic aspect of it was a little striking.

And this little snippet I thought was classic:

Phelps-Roper, Phelps-Davis, and the church's lawyer, Katz, all objected to preliminary jury instructions that use "vulgar" and "shocking" to characterize speech that is entitled to lesser First Amendment protection, instead of "extreme" and "outrageous." Bennett justified his choice of adjectives by citing his source. "Those are the words of the Supreme Court of the United States," Bennett said, before noting that the offensiveness of the defendants' messages would be "up to the jury."


Posted by: CharleyCarp | Link to this comment | 11- 1-07 2:40 PM
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I forgot to mention, lawyer/scholar/awesome guy Paul Gowder comments on this here:

http://lawandletters.blogspot.com/2007/10/penumbral-emanations-free-speech-and.html


Posted by: Belle Lettre | Link to this comment | 11- 1-07 3:25 PM
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Thanks for the link in 147 (although one sentence troubled me: "Feminists sometimes bear body parts in public on various issues.". Surely that's subsumed under the right to bare arms? I'm reminded of Clinton and Valenti, who were criticized for bearing breasts in public). And the bit on the jury instructions was nice.

I'm thinking that the answer to Ogged's question is "yes, there are free speech issues here", although we're not quite agreed on how to resolve those issues.

For me, the ability to look away, the ability to ignore someone else's speech is crucial. In other words, that along with the right to speak is everyone else's right to ignore you. I think this was mentioned in the site discussing Skokie. No one has the right to chase me down the street to force me to hear them, no one has the right to come into my house to speak to me - but as long as I can walk away or stick my iPod buds in my ear you can keep talking.

This is why the signs along the motorcade route are very different from coming into the church or intuding into the graveside service. With signs you can look away, or close your eyes.

There shouldn't be a right not to have your feelings hurt by political speech, no matter what the intent or how outrageous the speech. I'd distinguish the Guliani example by exluding falshoods from protection. As long as something is opinion, or belief, or true, (and its political speech, however defined) there should be a right to say it.

Yes, Malkin and Coulter et al. are hurtful and outrageous, but that's vigorous debate. I also want to be able to stand beside the route of a military funeral motorcade with a sign saying "Let [insert name] be the last to die for this pointless mistake. Troops out of Iraq NOW". I know it will offend people, and it is hurtful, and it personalizes the issue. It may also be a tactical mistake and counter-productive. But I want the right to express my opinion, however stupidly I do so. If you support torture and pointless wars for domestic political advantage, you betcha I want to make you feel distress.

Respect for the dead, courtesy for the family of the dead, is a nice thing. However, I put it in the same category as flag burning, and I think that such symbolic speech can be the most powerful and persuasive. Saying that people can speak, but only in ways that make them hard to hear and easy to ignore, is no sort of way to preserve democracy. We have a paucity of non-professional political speech as it is, we need to encourage rather than deter it.

I would be chilled, frightened, by the prospect of a lawsuit after reading of the Phelps verdict. Even if it is overturned on appeal, or judgment n.o.v. is entered, there's still considerable damage inflicted on the Phelps'. Bad enough that I have to worry about having my head cracked open by the police (as happened to others at an anti Iraq war protest here). I don't also want to have to worry about the anguish and expense of a civil defense - both of which can be tremendous.

I've gone on too long, and I know I'm not going to persuade anyone, but I wanted to take this opportunity to try to clarify my own thinking, and we thank you for your support.


Posted by: Michael H Schneider | Link to this comment | 11- 1-07 5:42 PM
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Oh geez, I have to correct that typo.


Posted by: Paul Gowder | Link to this comment | 11- 1-07 8:17 PM
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148 -- Speech that offends people, or is hurtful but gets them to think, isn't going to come within the tort. It's got to be much more than that.

And if you want to engage in outrageous speech, do so with regard to public figures.


Posted by: CharleyCarp | Link to this comment | 11- 1-07 10:41 PM
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148 wants to hold a sign saying "Let [insert name] be the last to die for this pointless mistake. Troops out of Iraq NOW."

But even that suggests that you're sorry the person died. Which to me is the basic minimum of decent behavior at a funeral. Even if you're politicking it.


Posted by: Jesurgislac | Link to this comment | 11- 2-07 2:51 AM
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Photo of the Phelps/WBC douche parade here.


Trial judge Richard Bennett is a long time Republican so one would expect that he should eschew judicial activism in favor of respecting the jury verdict on post trial motions. We'll see how true he is to his roots


Posted by: shpx.ohfu | Link to this comment | 11- 2-07 7:50 PM
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That's not real, is it? "God Hates Your Tears"?? That's got to be a photoshop.


Posted by: Brock Landers | Link to this comment | 11- 2-07 7:53 PM
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Not a shop. This was during the trial. The douchieness of the Phelpses knows no bounds.


Posted by: shpx.ohfu | Link to this comment | 11- 2-07 8:29 PM
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Seriously, that's all kinds of fucked up. I retract all my earlier semi-sympathetic statements.


Posted by: Brock Landers | Link to this comment | 11- 2-07 8:33 PM
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Seriously, that's all kinds of fucked up. I retract all my earlier semi-sympathetic statements.

It's precisely the unsympathetic who need the protection of the constitution.

I say that as one of those who is all kinds of fucked up, and unsympathetic. I managed to offend most of my County Democratic party at the first County Central Committee meeting I attended as a precinct delegate. When the guy at the podium instructed us all to stand up, bow our heads, and pray in the name of Jesus, I kept my ass in my seat and my chin up. At a later meeting, under the same circumstance, I clapped slowly through the official prayer, explaining that the guy on stage was praying his way and I was praying mine.

Yes, I intended to offend people. I intended to disrespect their religion, and their religious observance. I did this knowing that the local Democratic party has always been Catholic and Spanish - American, and I'm neither.

Counting on a sympathetic jury would be insanity. I want my constitution! If I'm ever before a jury I'm a goner, no matter what the facts or the law. Where's McManus? This is his chance to look sane, normal, and moderate, just by standing next to me.


Posted by: Michael H Schneider | Link to this comment | 11- 2-07 9:30 PM
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Schneider, is your real name Chaplinsky?


Posted by: CharleyCarp | Link to this comment | 11- 2-07 9:46 PM
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Yes. That's why I'm commenting here: a condition of my probation prohibits me from speakin to anyone in person, face to face, lest my language incite them to violence. By limiting me to the interwebs, it is hoped that the violence I provoke will occur in some far off jurisdiction where it won't burden the forces of peace in this community.

There are also the matters of my sartorial infelicities, which have provoked loathing, disgust, and nausea in people of normal sensibilities. Going far beyond such things as pleated front pants, I am (I believe) the only person to have been convicted of public indecency despite being completely and modestly covered. My attire was such as to trigger shock and outrage in people of ordinary and common esthetic intelligence. Be glad, be very glad, we don't have a video link: I am now enjoined from appearing in public clothed.

I recognize that these minimal intrusions upon my liberty are narrowly crafted to promote the legitimate State aim of preserving the peace.


Posted by: Michael H Schneider | Link to this comment | 11- 2-07 10:16 PM
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